State of Madhya Pradesh Vs. Deepak Sharma - Court Judgment

Excerpt:
criminal - rejection of bail - sections 397, 439 and 493(2) of indian penal code,1860(ipc) and section 30 of arms act - bail application filed by applicant (co-accused) on ground that main accused-respondent has been released on bail by trial court however, bail application of applicant rejected - while deciding bail application of applicant, court has taken suo-motu action as per provision under sections 397, 439 and 493(2) of ipc against grant of bail to respondent - held, trial court rejected bail application of applicant against whom there was no charge of commission of murder of deceased and he was charged under section 30 of act regarding contravention of arms licence and rules - however, bail application of respondent who was main accused of murder accepted and bail was ejected to applicant by trial court which would sent wrong message to society about judicious functions of judiciary - in light of legal principles, order of grant of bail passed by trial court is hereby cancelled and respondent is directed to surrender before trial court - trial court is also directed to take him in custody immediately in accordance with law - revision allowed - section 2(f): [dipak misra, k.k. lahoti & rajendra menon, jj] service tax - packaging and bottling of liquor whether amounts to manufacture within meaning of section 2(f) of central excise act 1944? finance act 932 of 1994), section 65 (76 b) (as amended on 16.6.2005) - held, the first limb of the inclusive definition of the manufacture under section 2(f) of central excise act has a very wide connotation. as the definition clause lays down an inclusive facet, the term manufacture has to be construed in a natural and plain manner and would include any process incidental or ancillary to the completion of a manufactured product. keeping in view the context in which the term manufacture has been used, it would take in its fold incidental and ancillary process in the manufacture or finishing of any manufactured product. it does not leave any room for doubt that an allied process should be integral and inextricable part of manufacture of completeness and presentability of the manufactured product. section 65(76b) of finance act used the words but it does not include. thus it is a definition which has the inclusive as well as exclusive facet. by virtue of the same it may include certain things and exclude others. it is well settled principle of law that a definition is not to be read in isolation and has to read in context of phrase which it defines, releasing that function of a definition is to give precision and certainty to the word or phrase which would otherwise be vague and uncertain. regard being had to the exclusionary fact in the finance act, though a limited one it would exclude the manufacturing process as defined under section 2(f) of the 1944 act. keeping in view the aforesaid dictionary clauses and circulars issued by the c.b.e.c. it is quite luminescent that would manufacture has to be understood in a broader sense and not to be confined or restricted to the excisable product in the act. it would include all processes which amount to manufacture whether or not the final product is an excisable product. in the process of manufacturing of country spirit, the over proof spirit which is not potable is reduced to issuable strength, which is potable. colouring and flavouring agents are added at the time of maturation. thereafter the liquor is supplied in sealed bottles to the retail contractors. this is the process of treatment given to over proof spirit in order to render it fit for human consumption in the form of country liquor. if the process is analysed there cannot be any scintilla of doubt that the process involves the manufacturing one under the provisions of section 2(f) of central excise act, 1944. as per the m.p. country spirits rules as well as clause 6 of the tender conditions it is mandatory for a distiller to supply country liquor in sealed bottles and not otherwise. therefore, packaging and bottling of liquor come within the ambit and sweep of manufacture within the meaning of clause (f) of section 2 central excise act, 1944 in view of the definition contained in section 65(76b) of the finance act especially keeping in view the exclusionary facet and further regard being had to the circular issued by central board of excise and customs. - 3661/02. 3. in nut shell, prosecution case as mentioned in the order of grant of bail by the trial court to non applicant as well as in the charge sheet, is that deceased dilip was sitting on the cot at punjab petrol pump, narmada road in the night at about 11.25 p. the averment in fir as well as statements of eye-witnesses were duly supported by the medical report. it is, however, legitimate to suppose that the high court or the court of session will be approached by an accused only after he has failed before the magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused. the history of the case as well as of its investigation and other relevant grounds which, in view of so many variable factors, cannot be exhaustively set out. it is equally true that personal liberty of the citizens should not be interfered without following the procedure of law but in cases like this, if such persons are released by mere asking, it would affect the administration of criminal justice. sundarshan singh, air 2002 sc 1475 :(2002 cri lj 1849). 7. learned counsel for non-applicant deepak has filed copies of statements of eight witnesses out of which eye-witnesses mukesh, kamlesh and other important witnesses like gajendra singh tanwar, bharat yadav have turned hostile.orders.l. kochar, j.1. this order also governs disposal of mcrc no. 3661/02; state of m.p. v. deepak s/o mahesh sharma.2. in an application for grant of bail filed by co-accused mukhtyar vide mcrc no. 3375/02 it was argued on behalf of the accused that main accused non-applicant deepak, causing fire arm injury to the deceased, has been released on bail by i additional sessions judge, badwah by order dated 24-9-2002. certified copy of this order was also filed, whereas bail application of co-accused mukhtyar was rejected prior to 25-9-1992. though against him there was no allegation for causing injury to the deceased or even taking direct or indirect part in the incident of murder. he was a gunman duly appointed by the owner of petrol pump for security purpose, where deceased dilip and non applicant deepak were sitting. accused deepak in absence of co-accused mukhtyar used the gun for commission of murder of dilip. against mukhtyar charge was only under section 30 of the arms act. while deciding the bail application of co-accused mukhtyar, this court has taken suo-motu action as per provision under sections 397, 439/493(2) of the ipc against grant of bail to non-applicant deepak vide mcrc no. 3661/02.3. in nut shell, prosecution case as mentioned in the order of grant of bail by the trial court to non applicant as well as in the charge sheet, is that deceased dilip was sitting on the cot at punjab petrol pump, narmada road in the night at about 11.25 p.m. on 30th may, 2002. at that juncture, non-applicant deepak also came over there and sat on a chair with another employee mukesh. bhuresingh asked other employee gajendra to fetch the water, who came and kept 12 bore gun by the side of the cot and went to the office of petrol pump to fetch water. in the meanwhile, power supply was started and therefore, mukesh went to switch off the generator. during this period, deceased dilip and non applicant deepak had some sort of altercation. non applicant deepak took 12 bore gun and fired at dilip on his chest as a result of which dilip fell down and became unconscious. all the employees rushed towards there and took dilip to hospital where he was declared dead. the incident was witnessed by the employees of the petrol pump. fir was lodged by manager bhuresingh immediately.4. the name of non-applicant deepak is specifically mentioned in the fir as user of fire arm causing injury to dilip on the chest of deceased. the averment in fir as well as statements of eye-witnesses were duly supported by the medical report. prior to grant of bail to non-applicant, the same court had refused regular bail to co-accused mukhtyar against whom there was no allegation for taking direct or indirect part in the incident but he was roped into the crime with the help of section 30 of the arms act. learned trial court has granted bail to non-applicant deepak on the ground that investigation was complete and the charge sheet was filed. applicant was not required for any seizure of incriminating article. he was in jail since last about 3 months and the trial may take time for its conclusion. relevant portion of the order is reproduced hereinbelow :eqy vfhkys[k ds voyksdu ls ik;k tkrk gs fdvuqla/kku iw.kz gksdj fopkj.kk u;k;ky; ds le{k pkyku izlrqr fd;k tk pqdk gsaizdj.k esa vkosnd ls fdlh izdkj dh tirh ugha gksuk gs rfkk izdj.k ds fopkj.kkesa le; yxus dh lahkkouk gs rfkk vkosnd foxr rhu ekg ls tsy esa gsa mldh vksjls;g izfke izfrhkwfr vkosnu i= gsa vr% bu lhkh ifjlfkhrh;ksa esa eqy vfhkys[k dsvoyksdu ds i'pkr fopkj.k esa le; yxus dh lahkkouk gksus ls budkj ugha fd;k ldrkgs] ,slh flfkrh esa vkosnd dks izfrhkwrh vkonsu flodkj fd;k tkuk mfpr ik;k tkrkgsa5. having heard learned counsel for the parties and after perusing the entire record, this court is of the opinion that the provisions under section 439, cr.p.c. are to be considered along with section 437, cr.p.c. section 437(1) reads as under :--437. when bail may be taken in case of non-bailable offence--(1) when any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a court other than the high court or court of session, he may be released on bail but--(i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life.(ii) such person shall not be so released if such offence is cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence.leading judgment elaborately discussing principle and law of grant of bail in gurucharan singh v. state (delhi administration) air 1978 sc 179 : (1978 cri lj 129) in paragraph 24 has held that :--'24. section 439(1), cr.p.c. of the new code, on the other hand, confers special powers on the high court or the court of session in respect of bail. unlike under section 437(1) there is no ban imposed under section 439(1), cr.p.c. against granting of bail by the high court or court of session to persons accused of an offence punishable with death or imprisonment for life. it is, however, legitimate to suppose that the high court or the court of session will be approached by an accused only after he has failed before the magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused. even so, the high court or the court of session will have to exercise its judicial discretion in considering the question of granting of bail under section 439(1), cr.p.c. of the new code. the overriding considerations in granting bail to which we adverted to earlier and which are common both in the case of section 437(1) and section 439(1), cr.p.c. of the new code are the nature and gravity of the circumstances in which the offence is committed, the position and the status of the accused with reference to the victim and the witnesses; the likelihood of the accused fleeing from justice of repeating the offence; of jeopardising his own life being faced with a grim prospect of possible conviction in the case of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many variable factors, cannot be exhaustively set out.6. in the light of the provisions of bail and dictum of the supreme court and the ratio in gurucharan's case (supra) it is shocking to the judicial conscious, in the facts and circumstances of the present case, where positive direct evidence is available against the non-applicant for commission of cold blooded murder, he was let off by the learned additional sessions judge on impertinent ground. as a matter of fact, order of learned court below is not disclosing any valid and germane reasons for releasing such accused. though under section 439(1), cr.p.c. unfettered powers have been given to the high court and sessions court but the same are required to be exercised judicially and not arbitrarily. recently, the supreme court in case of suresh kumar somabhai rana v. ashok kumar haraklal mittal 2002 (2) mpwn 134 has cancelled bail granted to accused for the offence under sections 302, 149, ipc by the high court whereas the same was refused by the sessions court (this decision reproduced in toto) the supreme court has observed that in the case where accused are involved under section 302, ipc it should not be forgotten that granting or refusing bail is the function of the court to be discharged judicially and not arbitrarily. it is apposite in this context to extract the following observations made by the apex court in the case of suresh kumar (supra).in our view, such an order would be against the established principles of law and also against the interest of justice which has serious impact on the society. in such cases, if accused are let loose before the trial they would have an opportunity to tamper with the evidence by their muscle and money power. it is equally true that personal liberty of the citizens should not be interfered without following the procedure of law but in cases like this, if such persons are released by mere asking, it would affect the administration of criminal justice. this court in shahzad hasan khan v. ishtiaq hasan khan (1987) 2 jt (sc) 323 : (1987 cri lj 1872) observed 'liberty is to be secured through the process of law, which is administered keeping in mind the interest of accused the near and dear ones of the victim, who lost his life and who feels helpless and believe that there is no justice in the world as also the collective interest of the community so that parties do not lose faith in the institution and indulge in private retribution.'again recently in the case of pawan @ tamatar v. ram prakash pande 2002 (supp) 1 jt sc 440 : (2002 cri lj 2940) the supreme court has cancelled the bail granted by the high court on medical ground to the accused against whom direct ocular evidence was available. in this case, the high court has granted bail on medical grounds. further reliance can be placed on the supreme court judgment in the case of ram govind upadhyay v. sundarshan singh, air 2002 sc 1475 : (2002 cri lj 1849).7. learned counsel for non-applicant deepak has filed copies of statements of eight witnesses out of which eye-witnesses mukesh, kamlesh and other important witnesses like gajendra singh tanwar, bharat yadav have turned hostile. this shows that yet some eye-witnesses and lodger of fir manager bhuresingh are to be examined. these facts are also strengthening that learned trial court has improperly exercised judicial discretion while granting bail. in the case of pawan @ tamatar (2002 cri lj 2940) (supra) bail granted on medical ground by the high court, has been cancelled by the supreme court mainly on the ground that two eye-witnesses having retracted their statements, the high court was not right in granting bail in a murder case to the accused against whom direct and specific role has been assigned by the witnesses. learned counsel for the applicant has placed reliance on the following judgments.1. air 1978 sc 961 : (1978 cri lj 952), the state (delhi adm.) v. sanjay gandhi;2. 1999 mpjr (1) 40 : (1998 cri lj 4527), mubarik khan v. nasir khan;3. 1999 (1) mplj 138 (sic) murlidhar v. state of m.p.4. (2002) 3 crimes 249 (bombay), justin d'cunha v. state.5. (2001) 3 crimes 260 : (2001 cri lj 2673), state of manipur v. pheiroijam joy singh.6. (2000) 3 crimes 291 : (2000 cri lj 2555), kakadapu bala krishna v. state of a.p.8. the counsel for the applicant strenuously argued that once the bail is granted to the accused, the same should not be cancelled without having positive material on record about its misuse. there is no denial on this principle but in the present case, bail granted to non-applicant itself was contrary to the principles of law of grant of bail in a case punishable with death or life imprisonment, as discussed above and as laid down by the supreme court. the authorities cited by the learned counsel for non - applicant accused deepak are all on the point of law of cancellation of bail where the accused was granted bail in proper and judicious exercise of powers by the courts, whereas in the present case in the opinion of this court initial bail granted by the learned asj is contrary to principle of law of grant of bail. therefore all these judgments are not relevant and helpful to non- applicant. therefore, non-applicant deepak does not deserve to be remained on bail till final disposal of the case. by own showing of the defence documents, it is clear that some of the material eye-witnesses have been examined and all have turned hostile. this factor can also be taken into consideration for setting aside the order of bail passed by the court below in favour of non- applicant deepak. 9. in the present case, learned trial court rejected bail; application of accused mukhtyar against whom there was no charge of commission of murder of deceased dilip. he was made co-accused with main accused non-applicant deepak with the help of section 30 of the arms act regarding contravention of arms licence and rules for which six months jail sentence or with fine which may extend to rs. 2000/- or with both, is prescribed. whereas after refusal of bail to mukhtyar bail has been granted to non-applicant deepak by the learned court below. this action of the learned trial court would have certainly sent wrong message to the society, near and dear of co-accused mukhtyar and deceased dilip, about judicious functions of judiciary.10. in the light of the aforementioned legal and factual discussion, order of grant of bail passed by the trial court on 21-9-2002 is hereby cancelled and non-applicant deepak in directed to surrender forthwith before the trial court on 30th january, 2003. trial court is also directed to take him in custody immediately in accordance with law. 11. in the terms indicated above, this revision stands allowed. as a consequence of the order passed in this revision, mcrc no. 3661/02 also stands allowed. copy of this order be placed in mcrc no. 3661/02.

Judgment:
ORDER

S.L. Kochar, J.

1. THIS order also governs disposal of MCrC No. 3661/02; State of M.P. v. Deepak S/o Mahesh Sharma.

2. In an application for grant of bail filed by co-accused Mukhtyar vide MCrC No. 3375/02 it was argued on behalf of the accused that main accused non-applicant Deepak, causing fire arm injury to the deceased, has been released on bail by I Additional Sessions Judge, Badwah by order dated 24-9-2002. Certified copy of this order was also filed, whereas bail application of co-accused Mukhtyar was rejected prior to 25-9-1992. Though against him there was no allegation for causing injury to the deceased or even taking direct or indirect part in the incident of murder. He was a gunman duly appointed by the owner of Petrol Pump for security purpose, where deceased Dilip and non applicant Deepak were sitting. Accused Deepak in absence of co-accused Mukhtyar used the gun for commission of murder of Dilip. Against Mukhtyar charge was only under Section 30 of the Arms Act. While deciding the bail application of co-accused Mukhtyar, this Court has taken suo-motu action as per Provision under Sections 397, 439/493(2) of the IPC against grant of bail to Non-applicant Deepak vide MCrC No. 3661/02.

3. In nut shell, prosecution case as mentioned in the order of grant of bail by the trial Court to Non applicant as well as in the charge sheet, is that deceased Dilip was sitting on the cot at Punjab Petrol Pump, Narmada Road in the night at about 11.25 p.m. on 30th May, 2002. At that juncture, non-applicant Deepak also came over there and sat on a chair with another employee Mukesh. Bhuresingh asked other employee Gajendra to fetch the water, who came and kept 12 bore gun by the side of the cot and went to the office of Petrol Pump to fetch water. In the meanwhile, power supply was started and therefore, Mukesh went to switch off the generator. During this period, deceased Dilip and non applicant Deepak had some sort of altercation. Non applicant Deepak took 12 bore gun and fired at Dilip on his chest as a result of which Dilip fell down and became unconscious. All the employees rushed towards there and took Dilip to hospital where he was declared dead. The incident was witnessed by the employees of the Petrol Pump. FIR was lodged by Manager Bhuresingh immediately.

4. The name of non-applicant Deepak is specifically mentioned in the FIR as user of fire arm causing injury to Dilip on the chest of deceased. The averment in FIR as well as statements of eye-witnesses were duly supported by the medical report. Prior to grant of bail to non-applicant, the same Court had refused regular bail to co-accused Mukhtyar against whom there was no allegation for taking direct or indirect part in the incident but he was roped into the crime with the help of Section 30 of the Arms Act. Learned trial Court has granted bail to non-applicant Deepak on the ground that investigation was complete and the charge sheet was filed. Applicant was not required for any seizure of incriminating article. He was in jail since last about 3 months and the trial may take time for its conclusion. Relevant portion of the order is reproduced hereinbelow :

eqy vfHkys[k ds voyksdu ls ik;k tkrk gS fdvuqla/kku iw.kZ gksdj fopkj.kk U;k;ky; ds le{k pkyku izLrqr fd;k tk pqdk gSAizdj.k esa vkosnd ls fdlh izdkj dh tIrh ugha gksuk gS rFkk izdj.k ds fopkj.kkesa le; yxus dh laHkkouk gS rFkk vkosnd foxr rhu ekg ls tsy esa gSA mldh vksjls;g izFke izfrHkwfr vkosnu i= gSA vr% bu lHkh ifjLFkhrh;ksa esa eqy vfHkys[k dsvoyksdu ds i'pkr fopkj.k esa le; yxus dh laHkkouk gksus ls bUdkj ugha fd;k ldrkgS] ,slh fLFkrh esa vkosnd dks izfrHkwrh vkonsu fLodkj fd;k tkuk mfpr ik;k tkrkgSA

5. Having heard learned counsel for the parties and after perusing the entire record, this Court is of the opinion that the Provisions under Section 439, Cr.P.C. are to be considered along with Section 437, Cr.P.C. Section 437(1) reads as under :--

437. When bail may be taken in case of non-bailable offence--

(1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail but--

(i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life.

(ii) such person shall not be so released if such offence is cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence.

Leading judgment elaborately discussing principle and law of grant of bail in Gurucharan Singh v. State (Delhi Administration) AIR 1978 SC 179 : (1978 Cri LJ 129) in paragraph 24 has held that :--

'24. Section 439(1), Cr.P.C. of the new Code, on the other hand, confers special powers on the High Court or the Court of Session in respect of bail. Unlike under Section 437(1) there is no ban imposed under Section 439(1), Cr.P.C. against granting of bail by the High Court or Court of Session to persons accused of an offence punishable with death or imprisonment for life. It is, however, legitimate to suppose that the High Court or the Court of Session will be approached by an accused only after he has failed before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused. Even so, the High Court or the Court of Session will have to exercise its judicial discretion in considering the question of granting of bail under Section 439(1), Cr.P.C. of the new Code. The overriding considerations in granting bail to which we adverted to earlier and which are common both in the case of Section 437(1) and Section 439(1), Cr.P.C. of the new Code are the nature and gravity of the circumstances in which the offence is committed, the position and the status of the accused with reference to the victim and the witnesses; the likelihood of the accused fleeing from justice of repeating the offence; of jeopardising his own life being faced with a grim prospect of possible conviction in the case of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many variable factors, cannot be exhaustively set out.

6. In the light of the Provisions of Bail and dictum of the Supreme Court and the ratio in Gurucharan's case (supra) it is shocking to the judicial conscious, in the facts and circumstances of the present case, where positive direct evidence is available against the non-applicant for commission of cold blooded murder, he was let off by the learned Additional Sessions Judge on impertinent ground. As a matter of fact, order of learned Court below is not disclosing any valid and germane reasons for releasing such accused. Though under Section 439(1), Cr.P.C. unfettered powers have been given to the High Court and Sessions Court but the same are required to be exercised judicially and not arbitrarily. Recently, the Supreme Court in case of Suresh Kumar Somabhai Rana v. Ashok Kumar Haraklal Mittal 2002 (2) MPWN 134 has cancelled bail granted to accused for the offence under Sections 302, 149, IPC by the High Court whereas the same was refused by the Sessions Court (This decision reproduced in toto) The Supreme Court has observed that in the case where accused are involved under Section 302, IPC it should not be forgotten that granting or refusing bail is the function of the Court to be discharged judicially and not arbitrarily. It is apposite in this context to extract the following observations made by the Apex Court in the case of Suresh Kumar (supra).

In our view, such an order would be against the established principles of law and also against the interest of justice which has serious impact on the society. In such cases, if accused are let loose before the trial they would have an opportunity to tamper with the evidence by their muscle and money power. It is equally true that personal liberty of the citizens should not be interfered without following the procedure of law but in cases like this, if such persons are released by mere asking, it would affect the administration of criminal justice. This Court in Shahzad Hasan Khan v. Ishtiaq Hasan Khan (1987) 2 JT (SC) 323 : (1987 Cri LJ 1872) observed 'liberty is to be secured through the process of law, which is administered keeping in mind the interest of accused the near and dear ones of the victim, who lost his life and who feels helpless and believe that there is no justice in the world as also the collective interest of the community so that parties do not lose faith in the institution and indulge in private retribution.'

Again recently in the case of Pawan @ Tamatar v. Ram Prakash Pande 2002 (Supp) 1 JT SC 440 : (2002 Cri LJ 2940) the Supreme Court has cancelled the bail granted by the High Court on medical ground to the accused against whom direct ocular evidence was available. In this case, the High Court has granted bail on medical grounds. Further reliance can be placed on the Supreme Court Judgment in the case of Ram Govind Upadhyay v. Sundarshan Singh, AIR 2002 SC 1475 : (2002 Cri LJ 1849).

7. Learned counsel for non-applicant Deepak has filed copies of statements of eight witnesses out of which eye-witnesses Mukesh, Kamlesh and other important witnesses like Gajendra Singh Tanwar, Bharat Yadav have turned hostile. This shows that yet some eye-witnesses and lodger of FIR Manager Bhuresingh are to be examined. These facts are also strengthening that learned trial Court has improperly exercised judicial discretion while granting bail. In the case of Pawan @ Tamatar (2002 Cri LJ 2940) (supra) bail granted on medical ground by the High Court, has been cancelled by the Supreme Court mainly on the ground that two eye-witnesses having retracted their statements, the High Court was not right in granting bail in a murder case to the accused against whom direct and specific role has been assigned by the witnesses. Learned counsel for the applicant has placed reliance on the following judgments.

1. AIR 1978 SC 961 : (1978 Cri LJ 952), The State (Delhi Adm.) v. Sanjay Gandhi;

2. 1999 MPJR (1) 40 : (1998 Cri LJ 4527), Mubarik Khan v. Nasir Khan;

3. 1999 (1) MPLJ 138 (sic) Murlidhar v. State of M.P.

4. (2002) 3 Crimes 249 (Bombay), Justin D'cunha v. State.

5. (2001) 3 Crimes 260 : (2001 Cri LJ 2673), State of Manipur v. Pheiroijam Joy Singh.

6. (2000) 3 Crimes 291 : (2000 Cri LJ 2555), Kakadapu Bala Krishna v. State of A.P.

8. The counsel for the applicant strenuously argued that once the bail is granted to the accused, the same should not be cancelled without having positive material on record about its misuse. There is no denial on this principle but in the present case, bail granted to non-applicant itself was contrary to the principles of law of grant of bail in a case punishable with death or life imprisonment, as discussed above and as laid down by the Supreme Court. The authorities cited by the learned counsel for non - applicant accused Deepak are all on the point of law of cancellation of bail where the accused was granted bail in proper and judicious exercise of powers by the Courts, whereas in the present case in the opinion of this Court initial bail granted by the learned ASJ is contrary to principle of law of grant of bail. Therefore all these judgments are not relevant and helpful to non- applicant. Therefore, non-applicant Deepak does not deserve to be remained on bail till final disposal of the case. By own showing of the defence documents, it is clear that some of the material eye-witnesses have been examined and all have turned hostile. This factor can also be taken into consideration for setting aside the order of bail passed by the Court below in favour of non- applicant Deepak.

9. In the present case, learned trial Court rejected bail; application of accused Mukhtyar against whom there was no charge of commission of murder of deceased Dilip. He was made co-accused with main accused non-applicant Deepak with the help of Section 30 of the Arms Act regarding contravention of arms licence and rules for which six months jail sentence or with fine which may extend to Rs. 2000/- or with both, is prescribed. Whereas after refusal of bail to Mukhtyar bail has been granted to non-applicant Deepak by the learned Court below. This action of the learned trial Court would have certainly sent wrong message to the society, near and dear of co-accused Mukhtyar and deceased Dilip, about judicious functions of judiciary.

10. In the light of the aforementioned legal and factual discussion, order of grant of bail passed by the trial Court on 21-9-2002 is hereby cancelled and non-applicant Deepak in directed to surrender forthwith before the trial Court on 30th January, 2003. Trial Court is also directed to take him in custody immediately in accordance with law.

11. In the terms indicated above, this Revision stands allowed. As a consequence of the order passed in this revision, MCrC No. 3661/02 also stands allowed. Copy of this order be placed in MCrC No. 3661/02.